TMI Blog2009 (6) TMI 696X X X X Extracts X X X X X X X X Extracts X X X X ..... NTED BY : Shri John Varghese, SC, for the Appellant. S/Shri Dr. Samir Chakraborty, Sr. Counsel, Hasmukh Kundalia and P.A. Augustian, for the Respondent. [Judgment per : P.R. Raman, J.]. Customs Appeal Nos. 6, 7, 8 and 9/2008 arise out of the order passed by the Customs, Excise Service Tax Appellate Tribunal, dated 12-3-2008. Customs Appeal Nos. 13, 15 and 16 of 2009 arise out of another set of cases disposed of by a common order of the Tribunal, dated 24-7-2008. 2. The point involved is the same. Though some of the appeals are presented beyond the prescribed period of time, the appeals were presented along with a petition for condonation of delay under Section 5 of the Limitation Act. It was contended that in the absence of any express provision making the Limitation Act applicable to the appeal so presented, the appeal presented beyond the time cannot be entertained and that Section 50 has no application and placed reliance on the decision of the Apex Court in Commissioner of Customs Central Excise v. Hongo India (P) Ltd. [2009 (236) E.L.T. 417]. We have perused the judgment cited. The Apex Court, after considering the provisions contained under Section 35H of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refixed based on the Chartered Engineer s certificate, which was no doubt higher than the value as declared by the respondent. The adjudicating authority held that goods are liable for confiscation; but it allowed to redeem the goods on payment of fine and also imposed penalties. Appeals preferred therefrom by the respondents inter alia contending that the redemption fine imposed was done in an arbitrary fashion and there was no market enquiry and the redemption fine fixed is not in accordance with the provisions of Section 125 of the Customs Act. Placing reliance on some of the decisions of the Tribunal, the redemption fine was sought to be reduced to 10% of the value of the goods and penalty to 5%. Thus, the confiscation of the goods was beyond challenge. The scope of the appeal was limited to the consideration regarding the quantum of redemption fine and penalty imposed. It was urged that the redemption fine and penalty imposed are exorbitant when the actual price of the imported goods is much less than the value fixed by the Revenue on the basis of the Chartered Engineer s certificate, that the enhancement of the value itself has escalated the duty and there is escalation in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rly show from the perusal of the order of the Appellate Tribunal that the Tribunal in fact considered the fact that for the purpose of imposing the redemption fine and penalty, it is not the value as declared by the importer is taken rather it is the valuation made as per the Chartered Engineer s certificate which clearly shows that it was an enhanced value from the one declared by the importer. Thus, the enhancement of the value has resulted in the escalation of duty as also the redemption fine and penalty. This has necessarily weighed with the Appellate Authority and the Appellate Authority has given its reasons for reduction of the redemption fine and penalty and thus exercised the discretion in an objective manner having due regard to the facts in the case which does not give rise to any question of law much less any substantial question of law. It is also contended that when discretion is vested on an Authority, in the absence of any guideline inbuilt in the provision or rule, it has to be exercised in an objective manner on well-founded principles is beyond any dispute. But in the factual situation, the Authority has applied its mind and exercised its discretion which does no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ixed by the Chartered Engineer s certificate. Therefore, the redemption fine imposed being on such rate as fixed in the certificate issued by the Chartered Engineer, there was escalation in the redemption fine and penalty imposed. Thus, the Tribunal has given its own reasons in the matter of fixing, a rate, at which the fine should be imposed. Therefore, it cannot be said that it is a perverse finding. What would have been the rate had the matter been dealt with by this Court sitting in the armchair of the Appellate Authority, however, cannot be substituted. 9. In this regard, we may refer to certain case law cited by both sides. A Bench decision of the Madras High Court in Commissioner of Customs, Tuticorin v. Sai Copiers [2008 (226) E.L.T. 486 (Mad.)] had occasion to consider a similar case where the Tribunal had reduced the amount of penalty and redemption fine to 5% and 15% respectively of the value of the goods. It was held thus : The statutory requirement is that the imposition of redemption fine shall not exceed the market price of the goods confiscated, less in the case of imported goods, the duty chargeable thereon. The language employed shall not exceed indicates t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... what exactly should be the redemption fine to be imposed will necessarily depend upon the facts and circumstances of each case. 13. It is settled that power of discretion by the authority is to be exercised based on well founded principles and should not be done in a mechanical way. We have already perused the order of the Tribunal and found that the Tribunal had given its own reasons for supporting as to why the redemption fine is to be reduced. That the rate at which the redemption fine is imposed in similar cases has been taken note of only for the limited purpose of maintaining consistency. Had it been a case where materials were placed by the appellant to draw a distinction from the rest of the cases, certainly, the Tribunal would have and ought to have considered those additional materials in arriving as to whether the rate imposed should be the same or whether any variation has to be made in the factual situation. In so far as no such attempt is made by the appellant before the Tribunal, we cannot find that this is dissimilar to the other cases. Any authority exercising the power is also bound by law of precedence and it is necessary to maintain consistency as otherwise i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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